U. S. Chief Magistrate Judge Andrew Peck has granted defendants' motion to exclude plaintiff Craig Mowry's expert's testimony in an infringement action and further granted defendants' motion for summary judgment. Mowry had attempted to show through the testimony of Dr. Carol Chaski, a linguistics expert, that defendants Viacom, Scott Rudin Productions, Andrew Niccol, and Paramount Pictures Corporation had infringed on his unpublished screenplay "The Crew" by demonstrating its similarity to the film "The Truman Show."

The difficulty of Mowry's case was in demonstrating access--thus his reliance on Dr. Chaski. Said Judge Peck, "Because Mowry's "industry access" theory is insufficient to demonstrate access...defendants are entitled to summary judgment unless access can be inferred from "striking similarities between The Crew and The Truman Show....Indeed the parties agree that comparison of the works is sufficient for the Court to determine striking similarity. Defendants' summary judgment brief...contents that "[t]his Court will perceive the total lack of substantial similarity between the works upon viewing The Truman Show movie and reading The Crew script." Mowry agrees...The Court has accepted the parties' invitation..." After examining the two, the judge concluded that "...no rational jury could find the two works to be strikingly similar." Further, he found that the expert witness' testimony did "not change the result." "For several reasons, Dr. Chaski's report and testimony is not sufficient to change the Court's conclusion...First, Mowry points to no case in which an expert using cladistic or phylogenetic tree analysis has been used to show striking similarity (or even substantial similarity) between literary works, and the Court's research has found no such cases. While it is true that there must be a first time...this is not the case....Second, Rule 702 requires that the "specialized knowledge" of the expert must be such as to "assist the trier of fact to understand the evidence or determine a fact in issue."...Unlike in specialized areas like music, the trier of fact can compare the works without the need of expert assistance....Third, a major defect in Dr. Chaski's report is that her comparisons were not based on the screenplays themselves but on her charts, in which she summarized or paraphrased aspects of The Crew and The Truman Show....Fourth, while Dr. Chaski argues that as a result of similarities, The Truman Show was derived from The Crew, the Court cannot say that Dr. Chaski's testimony is sufficient to show that The Truman Show could not possibly have been the result of independent creation, which is the appropriate test...Finally, the Court concludes that Dr. Chaski's expert report does not create an issue of fact precluding summary judgment. An expert cannot create an issue of fact by rendering an opinion on similarity as to works that no rational jury could find to be strikingly similar."